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National People's Congress Standing Committee Issues Revised State Secrets Law

May 20, 2010

In late April 2010, the National People's Congress Standing Committee issued the revised Law on the Protection of State Secrets which takes effect in October. The revised law maintains the vague and broad definition of state secrets under the existing law that has made it susceptible to abuse by officials. It remains to be seen whether the revised law will lead to less arbitrary determinations of state secrets and whether Internet and other public information network providers will be required to do more to locate and remove state secrets.

On April 29, 2010, the National People's Congress Standing Committee passed the revised Law on the Protection of State Secrets (2010 Law), to replace the existing law in effect since 1989 (1989 Law). The definition of "state secrets" in the 2010 Law remains vague and broad despite the central government news agency's claim that the new definition narrows the scope of state secrets. The 2010 Law will take effect on October 1, 2010. Under the current state secrets legal framework, Chinese officials have wide latitude to declare almost any matter of public concern a state secret. Officials have used the state secrets designation to punish rights activists such as Huang Qi and journalists such as Shi Tao, treat information on government policies such as the death penalty a state secret, deny requests for government information, and deny criminal defendants access to counsel and an open trial.

2010 Law's Impact on Definition of State Secrets

The definitions of state secrets in both the 2010 Law and 1989 Law are similar and the wording changes do not appear to narrow the definition's scope. The 2010 Law retains the original wording for Article 2, which sets forth the following requirements for information to be a state secret:

(1) the information must relate to "state security and national interests";
(2) it must have been determined to be a state secret "in accordance with legally defined procedures"; and
(3) knowledge of it must be restricted to a defined scope of personnel for a defined length of time.

As in the 1989 Law (Article 8), the 2010 Law contains a provision (Article 9) that provides a list of specific categories of "secret matters" that may constitute a state secret. This includes secrets concerning major policy decisions on state affairs, national economic and social development, and science and technology. This list remains unchanged in the 2010 Law, preserving the broad categories that give officials wide discretion to declare information a state secret, including the catch-all Item 7: "other matters that are classified as state secrets" by the department in charge of protecting state secrets. Furthermore, it is unclear whether this list is intended to be exhaustive. There is no language that says a state secret is limited to "only" information falling into these categories.

Xinhua, the central government's news agency, published an April 29 report that claims new language at the beginning of Article 9 provides a clearer definition of state secrets. Specifically, the Xinhua report points to language that says information falling into one of the categories should be classified as a state secret if it also meets the condition that "if leaked, [it] could harm the state’s security and national interests in the areas of politics, economy, national defense, foreign relations, among others" (emphasis added). There are several reasons that this additional language does not narrow the scope of state secrets. First, the 1989 Law already contained an implicit requirement that information is considered a state secret if disclosure would result in some harm to "state security and interests" (Article 9). Second, the references to "politics, economy, national defense, foreign relations" are not exhaustive, as indicated by the use of "among others" (deng). Third, such categories are broad enough to encompass a wide array of information. Finally, officials may still rely on the catch-all Item 7 to declare information a state secret.

Reduction in State Secrets?

The Xinhua article also cites Professor Wang Xixin of the Peking University Law School as saying the 2010 Law would lead to a reduction in the number of state secrets because there are now fewer government department levels with the power to classify state secrets. It is, however, unclear whether there will be a reduction in the number of state secrets and what the significance of a reduction will be if it occurs. New provisions that more specifically designate who within a state agency (guojia jiguan) or unit (danwei) is responsible for determining a state secret (Article 12), require officials to conduct periodic audits of whether certain state secrets may be disclosed (Article 19), and provide limits on the period of time information may be classified as a state secret (Article 15), may reduce the number of state secrets without significantly narrowing officials' substantive discretion to declare information a state secret. The new law does not provide for any judicial review of a state agency's determination that information is a state secret. Furthermore, the new law introduces a more robust set of legal responsibilities and penalties (Section 5) that could pressure officials into declaring more information a state secret, although Article 49 also contains a penalty for officials who wrongly declare information a state secret.

Internet and Other Network Providers

The 2010 Law also contains a new Article 28 which requires "Internet and other public information network operators and service providers" to cooperate with authorities' investigation of state secret leaks and upon discovering a leak to stop transmission of the secret, preserve any relevant records, and notify officials. An official has said that existing regulations already contain similar requirements but that the inclusion in a law was needed to "keep up with the seriousness, speed and concealed nature of secrets leaked over new technologies," according to an April 29 New York Times article.

For information on how China's legal framework for state secrets denies citizens access to information on important government policies and denies criminal defendants access to counsel and an open trial, as well as for more information on political prisoner cases involving state secrets see pp. 5, 47-48, 52, 65-66, 107, 108, 141, 200, and 257 in the CECC 2009 Annual Report.